Parentage committee finishes discussion of donors and parentage
July 29, 2022
BY Alison Wilkinson
This month, the Parentage Law Reform Project Committee focused on donors and parentage. The Committee started this topic in the June meeting.
Section 24: Should there be more flexibility around donors and parentage?
Section 24 of the Family Law Act states that a donor is not automatically a parent by reason only of donation. Should the line between (non-parent) donor and parent be more flexible? Should donors and parents be able to draft pre-conception contracts for contact time?
This is where the Committee picked up its discussion. The Committee discussed many pros and cons associated with increased flexibility and contact. For example, there may be an increased risk of litigation where roles are not clear. Further, more contact between a donor and child may increase exposure for obligations including child support. The Committee also discussed the tensions between pre-conception contracts and the best interests of a child post-birth.
Next, the Committee considered whether section 24 should require a written pre-conception agreement for donors. Discussion centered around barriers to donation. Would adding an agreement requirement to the legislation limit the incentive to donate? What would the consequences be for individuals who may be unaware of the requirement? How could recipients contact unknown donors if a contract were required?
Section 27: Should there be a standardized form to document spousal non-consent to become a parent?
In the context of assisted reproduction, Section 27 of the Family Law Act grants parentage to a birth parent and the birth parent’s spouse (whether by marriage or marriage like relationship) unless the spouse does not consent or withdraws consent. This section does not have any specific requirements to deny or withdraw consent. The Committee discussed potential benefits of adding a specific form for denial or withdraw of consent. The advantage of a form is clarity. But this is at the risk of some people being unaware of the form and failing to complete it. The Committee also discussed the risks of requiring a spouse to sign a form in cases of family violence.
The goal of these discussions is to develop tentative recommendations to reform part 3 for a public consultation to be held later in the life of the project.